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* The English Legal Legal Aid Program -- Description of program 1988-1998 era      

* The Reform of the English Legal Aid Program -- the 1999 Act 

* Queens Bench judicial opinion upholding legality of 1999 reforms -- see "Important Judicial Opinions" section of International Legal Aid Collections. 

 

 

The English Legal Aid Program -- Description of program during 1988-1998 era

[The following information is excerpted from a website maintained by the Lord Chancellor’s Department in England.  We have reformatted portions of the excerpted sections, but the text remains intact. Most of the statistical data is current through FY 1996-97 or 1997-98.]  

Background

Total legal aid expenditure has increased by just over 115% in six years, from £682 million in 1990/91 to £1,475,500 million in 1996/97. Estimated expenditure for 1997/98 is £1,560,000 million.

The number of individual acts of assistance has increased from 2,609,509 in 1990/91 to 3,485,594 in 1996/7, an increase of 25%.

For the same six year period the average cost of a legally aided civil case increased by 89% in cash terms. 

(NOTE: The budget and expenditure figures in this report are expressed in English pounds.  To translate to dollar values, multiply these figures by 1.6 since the exchange rate currently is approximately $1.60 for each pound. Also relevant to comparisons, England and Wales have a population of 46 million. This compares to over 265 million in the United States and over 35 million in America's largest state, California.  To illustrate, this means the total legal aid expenditure in England and Wales for FY 1996-97 as reported in the first paragraph above was the equivalent of 2.36 billion dollars and the per capita legal aid expenditure was $51 per person.)  

The Legal Aid Scheme

The legal aid scheme in England and Wales comprises five parts, each dealing with a particular type of legal work. They are:

1-Advice and assistance - the Green Form scheme

2-Assistance by way of representation -  ABWOR

3-Duty solicitor schemes

4-Civil legal aid

5-Criminal legal aid

Annual statistics

The schemes apply to anyone, regardless of nationality, but only cover English law and proceedings in the courts of England and Wales.  

Legal Advice and Assistance - Green Form

Under this scheme, which is also known as Green Form, solicitors may help their clients in various ways, such as:

·         providing general advice about their legal situation and the options available to them;

·         giving assistance to try and settle disputes;

·         seeking a barrister's opinion; and

·         writing letters

Solicitors can advise on most matters concerning the law in England and Wales. The exclusions are wills (except for some limited categories of applicant) and conveyancing.

Those who qualify for the scheme are entitled to up to two hours of free legal advice (up to three hours in the case of matrimonial cases involving the preparation of a petition). However, the Legal Aid Board may agree to extending their limits.

Applicants qualify for Green Form if their disposable capital is £1,000 or less, and their weekly disposable income is £77 or less and they are not required to pay a contribution. Those with a disposable weekly income of more than £77 are not eligible for Green Form. Recipients of income support, income based job seekers allowance, family credit or disability working allowance qualify automatically.

The following are allowable in calculating disposable capital:

·         offset against the equity value of the applicant's home up to a maximum of £100,000 (main home if more than one). The maximum amount of mortgage that can be the equity value of a house is also limited to £100,000.

·         value of furniture, clothing, and tools and equipment of trade.

·         a disregard of £335 for the first dependant, £200 for the second and £100 for each further dependant.

The following are allowable in calculating disposable income:

·         Income Tax and National Insurance contributions

·         Allowances for dependants. The weekly rates are:

·         Maintenance payments to a person not a member of the household.

The following are not taken into account in the calculation of disposable income:

·         Attendance allowance

·         Disability living allowance

·         Constant attendance allowance

·         Any payment out of the social fund

·         Any payment made as part of the Earnings Top Up Scheme

·         Any payment made under the Community Care Direct Payments Scheme

Assessment: Assessments are carried out by solicitors.

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Assistance by Way of Representation - ABWOR

The ABWOR scheme covers the cost of solicitors to represent clients in certain types of case. It is mainly used for:

·         civil cases in magistrates' courts;

·         appearances before Mental Health Review Tribunals;

·         prisoners facing disciplinary charges; and

·         certain life prisoners and detainees at HM Prisons who appear before a Parole Board.

The Legal Aid Board requires a reasonable case to be established before allowing a solicitor to act under the scheme.

• Disposable income limits (weekly):

·         Lower (free) limit is £69

·         Upper (eligibility) limit is £166

• Disposable capital limit - ABWOR is not available if:

·         disposable capital exceeds £3,000

·         Dependants' allowances are the same as for Green Form

·         Contribution - one-third of the difference between disposable income and £69, payable until the proceedings are concluded or ABWOR is withdrawn [eg: if the disposable income is £99 ie £30 over the limit, a contribution of £10 is payable weekly for the life of the case].

Assessment: Assessments are carried out by solicitors.

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Duty Solicitor Schemes

There are two duty solicitor schemes, neither of which is means-tested:

·         The 24-hour Scheme. People being questioned by the police are entitled to free legal advice and assistance. People can choose either their own solicitor, or the 24-hour duty solicitor, or a solicitor from a list kept by the police.

·         The Magistrates' Court Scheme. Solicitors are made available in magistrates' courts under this scheme. They are there to help people on their first court appearance who do not have their own solicitors.

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Civil Legal Aid

Civil legal aid covers work leading up to and including hearing in a civil court. It covers almost all civil cases, though, with the exception of the Lands Tribunal and the Employment Appeal Tribunal, it does not cover tribunal cases.

Solicitors help in preparing the case and can represent clients in court; barristers also give advice and represent legally aided clients.

To get civil legal aid, all applicants have to satisfy the Legal Aid Board that they have a reasonable case, with a reasonable chance of success, and they must demonstrate to the Legal Aid Assessment Office that their means are within the qualifying financial limits.

In really urgent cases, such as those involving domestic violence, emergency legal aid can be granted immediately by the Legal Aid Board. Franchised solicitors may grant an emergency certificate without reference to the Board.

People qualify for non-contributory civil legal aid if their disposable capital is £3,000, or less, and their annual disposable income is £2,563 or less.

Applicants who receive income support and income based job seekers allowance automatically qualify financially for civil legal aid without having to pay a contribution.

If their income is between £2,563 and £7,595, or £8,370 in the case of personal injury claims, they are required to pay a contribution of one thirty-sixth of the excess of their disposable income above £2,563 for each month during the life of the case (eg: if disposable income is £4,003, the contribution [4003-2563 divided by 36] is £40, for each month during the life of the case).

Provision has been made for contributions to be suspended if contributions would exceed likely costs.

The following are allowable in calculating disposable capital:

·         the equity value of the applicant's home up to a maximum of £100,000 (main home if more than one). The maximum amount of mortgage that can be offset against the equity value of a house is also limited to £100,000.

·         value of furniture, clothing, and tools and equipment of trade.

·         capital of up to £35,000 may be disregarded in the case of a pensioner who relies on income from capital

A contribution is payable from capital if between £3,000 and £6,750 (or £3,000 and £8,560 for personal injury claims). Assessment Officers have discretion to disregard capital according to the circumstances of the case.

The following are allowable in calculating disposable income:

·         Income Tax and National Insurance contributions

·         Council Tax

·         Allowances for dependants. The yearly rates are:

·         Maintenance payments to a person not a member of the household.

·         Housing costs, such as:

o        rent

o        mortgage payments, limited to the amount that would be due on a £100,000 mortgage.

o        water and sewage charges

o        allowance for repairs and maintenance

o        ground rent

o        service charges

·         Work-related expenses, such as:

o        fares

o        subscriptions to trade unions or professional bodies

o        pension fund contributions

o        child minding

Assessment officers also have discretion to make further allowances against income which are considered reasonable in the circumstances. Examples are:

·         home improvement loans

·         loans raised for debt repayment

·         school fees

The following are not taken into account when calculating disposable income:

·         Attendance allowance

·         Disability living allowance

·         Constant attendance allowance paid as an increase to a disablement pension

·         Any payment out of the social fund

·         Any payment made as part of the Earnings Top Up Scheme

·         Any payment made under the Community Care Direct Payment Scheme

Assessment officers also have a discretionary power to include in the means assessment the assets of friends, relatives and children where these appear to be providing a significant material advantage to the applicant.

Assessment: Assessments are carried out at the Legal Aid Assessment Office.

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Criminal Legal Aid

This scheme covers all types of criminal proceeding and pays for a solicitor to prepare the case and represent a client in court. It may also cover the cost of a barrister, particularly if the case is heard in the Crown Court.

The decision to grant such aid depends on two tests:

·         Interests of Justice. The court will decide whether it is in the interests of justice to grant legal aid. For serious cases, such as murder or rape, it will always be in this interest to provide it. For less serious cases, such as minor motoring offences, the court is unlikely to agree to it. Between these extremes, the court decides on the basis of guidelines set out in the Legal Aid Act 1988.

·         Financial Means. The court looks into the applicant's financial position and also at the likely cost of the case. Applicants with the lowest means receive free legal aid, whatever the costs of the case. Those with more substantial means will not be granted legal aid if they can afford the likely costs. If the likely costs are large, applicants with reasonable means may be granted legal aid, but the Court can require the applicant to pay a contribution towards the cost of the case from both income and capital if it appears he or she is able to do so.

Applicants who are in receipt of income support, income based job seekers allowance, family credit or disability working allowance automatically qualify financially for criminal legal aid without having to pay a contribution.

If the applicant is cleared of the offence, the court normally refunds all contributions he or she may have made towards legal aid.

A contribution is required if weekly disposable income exceeds £49, at the rate of one-third of the difference between disposable income and £49 (eg: if the disposable income is £103, the contribution is £18 [103-49 divided by 3]). A contribution of £1 is payable for each £3 (or part of £3) by which average disposable income exceeds the weekly limit, but no contribution is payable where average disposable income is less than £50. There is no upper limit. Contributions are also required if an applicant's disposable capital exceeds £3000.

Allowances in both cases are as for Civil Legal Aid.

Contributions will continue so long as the legal aid is in force; that is, to the conclusion of the proceedings or until the order is revoked or withdrawn.

Assessment: Assessments are carried out by the staff of magistrates' courts and (in relatively few cases) the Crown Court.

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Annual Statistics for 1990/91 to 1996/97

Legal aid net expenditure (£m) 1990/91 to 1996/97

Legal aid gross expenditure (£m) 1990/91 to 1996/97

Legal aid acts of assistance 1990/91 to 1996/97

Legal aid expenditure against inflation 1990/91 to 1996/97